Reed v. Gilbert: A failure of prosecutorial discretion

On June 18, the U.S. Supreme Court concluded that the Town of Gilbert violated its citizens’ free speech rights under the First Amendment. The case — Reed v. Town of Gilbert — is a cautionary tale about government overreach and the role of prosecutorial discretion.

Court watchers will note three interesting facts about the decision.

First, it was unanimous. In a demonstration of bipartisanship on constitutional issues, every single member of the U.S. Supreme Court concluded that the town of Gilbert had violated the First Amendment. By contrast, the Pentagon Papers decision in 1971 (which bars government censorship of newspaper articles) had three dissenting justices. The unanimity in the town of Gilbert case shows that it was not a “close call;” the town of Gilbert lost decisively.

Second, the decision does not appear to break much new ground. The town of Gilbert lost the case because it based an enforcement action on the content of certain signs—and the Supreme Court has rejected “content-based” regulations of speech since at least 1937. Under the prior case law, the outcome does not come as a surprise; presumably, the nine justices were unanimous precisely because the outcome of this case was uncontroversial.

Thomas Basile

Third, the case stands out because the speech at issue was so inoffensive. A small, community-based church posted signs inviting passersby to worship at the church. The church posted the signs on Sunday mornings and removed them around noontime. The town of Gilbert, apparently displeased, cited the church twice for posting the signs. Many free speech cases that reach the U.S. Supreme Court concern the right to say or do unpopular things. The Supreme Court has, for example, upheld the right to burn flags, protest military funerals, and associate with communists. Perhaps unsurprisingly, elected officials and government bureaucrats are not keen to protect such activities, so that responsibility customarily falls to the court system in cases with unlikeable targets of governmental enforcement actions. The June 18 decision is notable because the speech at issue (church signs posted for a few hours) is so inoffensive compared to the speech in other free speech cases.

All these facts lead to the following assessment: This case is not fundamentally about free speech or signage regulation; the law on these issues was reasonably clear even before this case was decided. Instead, the real lesson is that courts are an imperfect substitute for prosecutorial discretion.

The town of Gilbert case seems like a very strong candidate for the type of non-enforcement decision underlying the concept of prosecutorial discretion. The case involves such inconsequential issues — small signs concerning an innocuous religious gathering, posted for a handful of hours — that sensible government officials should have second-guessed their crusade against the church and its signs.

Instead, when the church approached the government to negotiate a sensible compromise, the town of Gilbert declared there would be “no leniency” for the church and “promised to punish any future violations.” And true to its word, the town of Gilbert did not back away from its enforcement position when the case went to the federal trial court, or the Ninth Circuit, or even the U.S. Supreme Court. The town of Gilbert’s intransigence on such a weak legal theory, and against such inoffensive speech, is both shameful and puzzling. There appears to have been a complete failure in critical thinking about enforcement priorities—and the consequences of that failure are not trivial.

It may be tempting to argue that, because all nine members of the U.S. Supreme Court ultimately sided with the church, there is no cause for concern. That temptation should be resisted for several reasons.

First, the town of Gilbert has already drawn its pound of flesh from the church in the form of legal fees, stress, delay, and hassle (although in fairness, the church’s legal fees will soon be shifted to the unwitting taxpayers in the town of Gilbert who, being generally reasonable people, probably would not have endorsed the government’s enforcement priorities in the first place). And even if the church could be made whole, there is no way to restore the funds squandered by the town of Gilbert through this case, or to restore fully the sense that local governments, if no others, are responsive and work well.

At bottom, this case demonstrates why courts are an imperfect solution to the problem of government overreach. Even when the courts terminate enforcement proceedings, overreaching enforcement actions have serious consequences for enforcement targets, taxpayers, and our collective trust in public institutions.

– Kory A. Langhofer & Thomas Basile practice in the political law group in the Phoenix office of Brownstein Hyatt Farber Schreck LLP. They advise clients on matters of election law, strategic litigation against the government, and crisis management.

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